Legally Fiction:Translation Rights with Amanda Brice

Today we have author and attorney Amanda Brice. She is going to mind-meld those two sides together and tackle the questions surrounding translation rights.

Disclaimer: Please limit your questions to general questions that can be answered with legal information rather than asking for advice on a specific situation. Although Amanda Brice is a licensed intellectual property attorney, ethically she cannot be providing legal advice on an internet blog. Any information contained in this article and in her responses is to be considered legal information rather than legal advice, and does not constitute an attorney-client relationship. As always, consult with an attorney regarding your specific situation.

Today I’m going to talk about a particular type of derivative right of a copyright holder – the exclusive right to make (or license) translations.

A copyright holder has a number of exclusive rights, such as the right to make copies, the right to distribute, the right of public performance, and the right to make derivative works. That last one is the right to alter content, take extracts from it, combine it with another work, translate it into another language, or otherwise create a new work from an existing piece of content. A derivative work takes copyrighted material and transforms it into something else (such as a film, an audiobook, etc) based on the underlying work.

I wrote an article about the subsidiary rights of foreign sales as part of my Subsidiary Rights series for the Ruby-Slippered Sisterhood last year. Go check out the first post in the series (actually all of the posts!) for a good primer on subsidiary rights and how they relate to foreign sales of your work, or as I affectively refer to it – “Money for Nothing.”

When you sell your book to a foreign publisher, unless the publisher is in an English-speaking country, most likely there will be a translation made. Translations are a form of derivative right, which means that only the copyright owner can authorize a translation that will be distributed.

Translations are covered by a separate copyright, much like movie adaptations or films or audiobooks. But the copyright is subsidiary to the copyright in the underlying work.

Wait a second. A translation is covered by a separate copyright? Does that mean that the translator is a copyright holder?

It depends.

The thing is, two translations of the same text, by different people, wouldn’t be the same. If you ever had to translate a passage of a novel for a high school French class and then compared your translation to that of a friend, you’ll usually see some significant differences in the translation, even though both may be technically correct (and resulted in the same grade).

Translation is not a mechanical act. Someone who is competent in both languages but isn’t a good writer is a poor choice. If you do a literary translation, you aren’t just translating it word for word – exactly as written. You are looking to keep the nuance, flow, flavor, and pacing of the original. That’s why you want a translator who is also a writer, because they understand these things.

There can also be idioms and references that don’t necessarily exist in the other language, so the translator has to find equivalents. For example, the idiom “piece of cake” (meaning “easy”) is often translated as “child’s play” in German. Let’s say your character said “Piece of cake” and then jokingly said “Mmm…cake…” A bad translation might then say “Child’s play” with the punch line “Mmm…children.”

Or the pastry that we call a “danish.” There is no such thing in some other countries, so they’d have to find an equivalent pastry that would still get across the point of the food, because I doubt you’d want them translating it as “Danish,” as in the language or people of Denmark. “I’m eating a danish” is quite a bit different than “I’m eating a Danish.”

Yeah, you get the point. Literary translation is not the same as document translation. You don’t necessarily want a rote word-for-word translation. It takes a certain finesse to do it properly.

Thus, translators get copyright on their translation (subsidiary to the underlying work, of course) unless they’re doing it as work for hire (and some European countries such as Germany still give them copyright as it is impossible to sign away a moral right by contract although the translator can waive it or decline to enforce it).

In general, most translators won’t engage in a rights grab, as long as they are credited, have been paid, and no unauthorized changes are made to their work.

Derivative works are infringing if they are not created with the permission of the copyright holder. If I translate Beowulf directly from old English, then I’d own the copyright of that version because no authorization was necessary since the underlying work is in the public domain. On the other hand, I can’t translate Hugh Howey’s Wool and claim ownership of the translation (sadly – it’d be time to go to the bank if I could).

Ican translate Wool for my own amusement, but not with the intent to distribute it. If Hugh Howey were to authorize me to translate it, then he would own the copyright in the translation since he would clearly have made the translation a work-for-hire. (According to US statute, in a work-for-hire, the employing party is the author and it’s not required for the translator’s name to even be revealed — please note this is US law, and many countries have moral rights which require that you reveal the translator’s name. So if your translator lives in a foreign country, then you may be obligated to reveal the translator’s name, usually on the title page rather than on the cover.)

UNESCO (a UN body) recommended in 1976 that all member states give copyright protection to translators because of the importance of translations in culture and scientific development, however the US has not generally followed this recommendation.

The most typical situation for determining whether something is a work-for-hire is in the case of a formal employment situation (ie, I write something for my boss), however you can have work-for-hire even if there is no formal employment situation. Three requirements for this type of work-for-hire:
1. The work must be specially commissioned (Hugh Howey licenses you to translate Wool)
2. The work must fall into one of the nine categories listed in Section 101 of the Copyright Act (translations do)
3. There must be a “writing” (contract, but it doesn’t have to be formal) specifying that the work is a work for hire. (Hugh is savvy enough to include this in the contract where he licenses you to do the translation)

If you sell the foreign rights, the contract will likely specify that it is a work-for-hire.

Assuming that you’d like to exploit your translation rights, should you sell them to a publisher or hire a translator directly (if you reserved your rights, of course)? The question to ask yourself (apart from “Is this publisher legitimate?” – always do your due diligence) is “Will I want to use those rights myself some day?” and “What can the publisher do for me that I can’t?”. Translating a book into all of the world’s languages or even just the top twenty or so is prohibitively expensive.

If someone approaches you for translation rights into – say – Turkish or Bulgarian, you should ask yourself, “Am I ever going to have my book translated into one of those languages myself?” and “Do I know how to market them, which retailers are important in those countries, etc…?” If the answer is “no”, then it might be economically viable to take whatever money the publisher offers (usually not a huge amount for a “small” language), since you’re not using those rights anyway. It’s free money – you did the heavy lifting in writing the English book. You don’t have to do anything for it now.

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Okay – give us your questions for Amanda. Don’t even try to pretend you don’t have them!

Tomorrow, Diana Cosby discusses what you can learn from rejections.

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GIVEAWAY: Amanda will give away a digital ARC of her upcoming book, Pas de Death to three commenters. And . . . . .Codename: Dancer (first book in the series) is FREE today at e-tailers!

Bio:

Amanda Brice leads a double life. By day she’s an intellectual property attorney for a large federal government agency in the DC area. At night she juggles raising a preschooler and an infant with writing novels for teens, including the mysteries Codename: Dancer (which is free today for Kindle, Nook, iPad, and Kobo!) and Pointe of No Return. A popular speaker on the writers’ conference circuit with her workshops on basic copyright and trademark law, she is a two-time Golden Heart finalist and the president of Washington Romance Writers. The third book in her Dani Spevak Mystery Series — Pas De Death — will be released at the end of February. For more information, please visit www.amandabrice.net.

Please check out the trailers (complete voiceover by the narrator of the audiobooks, as well as dance clips) for her Dani Spevak Mystery Series at: http://amandabrice.net/extras/videos/

When you sell to a publisher, you’re selling English rights, often in a particular geographical region (although some will ask for it worldwide — generally only the digital first presses). Usually the region is North American rights (US/Canada), and then UK and Australia are separate sales (either handled by your publisher if you granted foreign rights or by you/your agent if you reserved them). And in a digital world, sometimes the English-language version will be available on the foreign-language-speaking sites as well. But you’ll need to sell or translate yourself into the foreign languages. (It all depends on what you granted in the contract.)

When you self-publish, you hold all rights, including foreign rights/translation rights/geographic rights. If you upload your book to one of the self-publishing sites, such as Amazon’s Kindle Direct Publishing, it will ask you if you want to publish in all countries for which you hold rights, or if you want to pick and choose.

Assuming the book is 100% self-published, usually you will chose to just upload it everywhere. I mean, why not? Not every country is going to have enough English-speakers, but there are English-speakers everywhere. I’ve gotten English-language sales in France, Italy, Germany, Spain, and Brazil.

If it’s the digital version of your backlist (or the digital version of a still-in-print book in another country, but there was never an ebook in that other country), then as long as you hold those rights (say, you hold UK rights and your publisher never exploited them), then you can self-publish in that country only, even if the book is traditionally-published in the US. You would simply check only the countries for which you hold those English-language rights, even if your publisher holds the rights in the US.

Now say you want to have a foreign-language edition of a self-published book. You can certainly do that, and many indies have. You’ll have the choice of whether to sell those rights to a foreign publisher (lots of foreign publishers scour the bestseller lists and contact authors — both traditionally-published and indies alike), or to hire your own translator.

The benefit of selling to a publisher is that the publisher will handle it all — paying for the translator (which is not cheap, let me tell you), marketing in the other country (which isn’t always an easy task), distribution (although in an increasingly-digital world this is getting less important, particularly if your readership is mostly ebook anyway). The drawback is that you’re only earning a percentage, because the publisher will pay you a royalty and then you’ll have to share that with both your agent and the foreign rights agent, for the life of the book. Let’s say the contract states 25% of net (which might only be 11% of list), and then you owe 25% to the agents, so that might only come out to about 8%. Or less. But hey, it’s free money, because you didn’t do anything for it.

The benefit of hiring your own translator is that you pay a flat fee and then do your own uploading, so you’ll get 100% of the royalty stipulated by the retailer. KDP pays 70%, B&N pays 65%, Apple pays 70%, Kobo pays 70%, etc. So since you won’t be splitting this with a publisher or two agents, you’ll keep that full royalty.

Granted, you have to pay upfront for the translation (which can run a couple thousand dollars or more), but if you’re a big seller with lots of earnings potential in that country, then this might be financially advantageous because remember — ebooks are basically FOREVER. You have the entire life of the book to make back that $2000-3000 investment, but for some bestsellers in the “big” foreign markets like Germany, it’s entirely possible to recoup that investment within the first year, and then everything beyond that is purely free money because you’re not sharing it with anyone else.

So it’s definitely a risk, and hiring a translator is not for everyone. Like I said in the article, you need to weigh the pros/cons. For a “small” language, it will generally be best to just sell the rights since you’re unlikely to ever hire a translator yourself anyway. For a “big” language, depending on your own earnings potential, it could be a much better deal to do it yourself, provided you’re able to find a competent translator and front the costs.

Oh absolutely. If you can afford an attorney (and keep in mind that for many “small” languages like Turkish, the payment from the publisher will only be in the $500 range, and the attorney’s fee might be close to that), then it’s definitely a good idea.

If you are not already agented and have been contacted by a foreign publisher, ask yourself what you want from the agent. Just to handle that sale? to sell you to other foreign markets? To sell other subsidiary rights (like audio, film)? To sell your future books to NY or even a print-only deal of your existing book?

If it’s just to handle that particular sale, it will probably not be worth the agent’s time, especially if it’s a “small” language. 12.5% (remember — the agent will be splitting the 25% you pay with her foreign agent) of $500 (a very typical payment for say Turkish, Bulgarian, Romanian, Thai, etc) works out to about $62.

But let’s say the publisher is German, which is generally considered to be the Holy Grail of foreign sales. Those advances (and you will often earn out and then still get royalties, whereas with many other countries, what you’re offered upfront is all you’ll ever see) can be in the 5-figures or more range, so it becomes more worth the agent’s time. Of course, depending on the size of the advance, you may not want to give up 25% for the life of the deal if you could hire an attorney for a flat-fee of a few hundred bucks.

So always weigh your pros and cons.

Remember, most cities have pro bono lawyers for the arts programs, where you can obtain low-cost or free information (or advice if you financially qualify).

Yes, there are many types of translators. Literary translators generally freelance for publishing houses, and if you sell your rights to a foreign publisher, they will pick a translator from their stable. And usually the translation will be great, but occasionally it…isn’t.

But if you decide to hire out and exploit your rights yourself (which a lot of authors are doing these days, even ones who are traditionally-published for their English-language books, simply because the return on investment might add up for them), then you need to know that you’re finding a good translator. Some authors have done this by speaking with their agent to see who has translated other books in their genre, and then contracting with the translator directly.

But my point is that you should never say “Well, my neighbor speaks fluent Spanish, so she’d do a great job.” She might. But then again, she might not. She may be tehcnically perfect in both languages, but if she isn’t a creative writer in her own right — or at least has significant experience with literary translation — then she probably wouldn’t be the right translator for the job.